Prosecutors Who Falsify or Withhold Evidence Now Face Felony Risk

Last year Governor Jerry Brown (D) signed into law a measure making it a felony for a prosecutor in California knowingly to falsify or withhold evidence. Other state laws already made falsifying or withholding evidence a misdemeanor for members of the general public, and a felony for state law enforcement officers; misbehaving prosecutors can also face sanctions from judges and be reported to the California bar, possibly leading to disbarment. But the new law is the first of its type in the state or the nation to target apply prosecutors specifically.

As enacted, the measure (AB 1909) amends a section of the state penal code to allow a prosecutor to prison for up to three years for “intentionally and in bad faith” altering, modifying or withholding any information known to be material to the outcome of a criminal case. So now a state prosecutor in California can face prison for intentionally and in bad faith falsifying or hiding evidence known to be material and relevant to a case the prosecutor is working on.

Origins of Bill AB 1909

The Supreme Court’s landmark 1963 case of Brady v. Maryland established that prosecutors violate defendants’ Constitutional equal protection guarantee if they fail to turn over to all potentially exonerating evidence.

The California bill gained traction from a scandal in Orange County, the state’s third biggest in terms of population, in which a whistleblowing public defender accused the county police and the district attorney’s office of violating defendants’ rights. In some cases, the accuser said, the D.A.’s office manufactured bogus evidence with the help of jailhouse informants, and in other instances illegally concealed evidence from informants that could have helped defendants.

Because of prosecutorial misconduct, local judges ended up overturning a number of convictions, including several for murder or attempted murder. The misconduct by the district attorney’s office was so substantial in prosecuting the defendant charged in the county’s largest mass murder that the presiding judge ordered the entire prosecutorial team removed from the case (a state appeals court panel recently upheld the order against a challenge brought by the state attorney general).

The bill was opposed by the union which represents prosecutors, public defenders and county counsel in Orange County, while an organization for criminal defense lawyers strongly backed it. The county’s district attorney said he supported the bill, but wanted it amended so it would apply to all attorneys in criminal cases, not just to prosecutors.

Backers of the measure argued prosecutorial misconduct was far from rare in the state, and pointed to a study done by the Northern California Innocence Project which found there had been over 700 instances of prosecutorial misconduct during the 13-year period between 1997 and 2009, but prosecutors wound up facing disciplinary measures in just six of those cases.

Opponents had hoped Governor Brown, who has vetoed a number of bills creating new felonies might refuse to sign AB 1909, but the measure, in its final form, had handily cleared each chamber of the legislature: the state Senate approved it by a hefty 60-18 margin, and the Assembly cleared it 36-1. That made it very unlikely the legislature would sustain a veto by the governor.

The client was charged with driving while impaired by drugs. We showed the DA’s office the client suffered from hyperkalemia, a medical condition caused by an elevated level of potassium which can cause fatigue, lethargy and confusion. All charges were dismissed.

Client was charged with Robbery in the Second Degree. He was with a friend who robbed a person sitting in a parked car. We were able to show the DA’s office that our client had no knowledge of his friends intent. We were able to get the felony reduced to a Disorderly Conduct which is a non criminal offense.

Client was charged with Criminal Posession of a Weapon and was facing a minimum of three and one half years. During an evidentiary hearing we were able to show that the police confuted an illegal search the gun was suppressed and the charge was dismissed.

Client was charged with Grand Larceny. It was her 7th arrest during the previous 10 years. The DA’s office was not offering a reduced charge and was requesting jail time. We got the client involved in a work and parenting program and were able to secure a plea to a misdemeanor without jail or probation.

Client was charged with Unlawful Surveilence. After his plea of guilty it was a discretionary decision to be made by the court as to weather he had to register as a sex offender. Through our efforts we were able to have him sentenced without having to register.

Client Testimonials

"I can’t thank Scott enough for helping me. I had never been arrested before and found myself in the middle of a nightmare. I was arrested for and charged with criminal Mischief in the Third degree which is a class E Felony. Scott was first able to get the charge reduced to a misdemeanor. He was then able to see that the case was completely dismissed."

T.T.Charged with Felony Assault and Criminal Mischief in Queens County

"Scott Limmer is a very knowledgeable Nassau County NY lawyer and has been extremely helpful to me and my family over 8 months of court. He knows how to handle the ADA and his tenacity has been untiring. The quality of his work is in the ending of the case, with justice being served and correct. We are very fortunate and thankful to have found Scott Limmer to represent us. Thank you Scott and God Bless"

F.L.Arrested for Robbery in the Second Degree in Nassau County

"Scott Limmer is a man of his word and an attorney with integrity above reproach. When one needs a criminal attorney it is usually the most harrowing time of your life. Scott Limmer makes a horrible situation easier. He speaks in layman’s terms and explains your situation every step of the way. He keeps the costs to a minimum and delivers beyond expectations. I would recommend choosing Scott Limmer as your attorney hands down."

A.O.Arrested for Suffolk County Felony

"I was arrested for a felony Mr. Limmer would not agree to any of the offered plea bargains. He was able to get the case dismissed. I can’t thank him enough for his hard work and professionalism."

D.D.Arrested for Falsifying Business Record in the First Degree in Nassau

"Scott helped me thru a very difficult 20 months of navigating thru the Nassau county legal system. His advice was on the money from the start to the end. Amicable, tenacious and knowledgeable, just some of the words to describe him…In the end I credit his guidance in helping me get the just court decision…But then again he knew the outcome….thanks Scott…we remain in touch to this day and my case was over almost two years ago…"

T.C.Arrested for Assault in the Third Degree in Nassau County

"Helped me thoroughly with all my traffic dealings. He is my go to guy for my company. Scott is the best."